On April 17, 2018, I was sitting in on the Indigenous and Northern Affairs Committee when law professor and expert witness, Dwight Newman, launched into a scathing critique of the bill before him.
The bill in question was an Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), also known as Bill C-262. (If you’re not familiar with UNDRIP, take a minute to get acquainted here.)
This private member’s bill, put forward by Cree MP and one of the drafters of UNDRIP, Romeo Saganash, now has the backing of the Liberal government and will likely become law.
Many individuals, organizations, and faith communities, including MCC, have supported this bill and campaigned for its passage. If implemented, the bill will fulfill two of the Truth and Reconciliation Commission’s calls to action and will be an important step towards reconciliation with Indigenous Peoples in the land now called Canada.
What then does Professor Newman have against it?
Newman has two general groups of criticisms: criticisms about the specific wording used in the bill, and criticisms about the unpredictable consequences that will result from recognizing these Indigenous rights. For those who like details, I’d recommend reading his brief here. Otherwise, read on for my overly simplistic summary.
In the first group of criticisms, about the specific wording of the bill, Newman points out that the phrase “application in Canadian law”, found in Section 3, isn’t found in any other statutes. Because these words have never been used before, it’s unclear whether UNDRIP will supersede other laws or whether it’s just something judges can look at occasionally to influence their interpretation of other laws. That’s a big difference.
“One’s essentially gambling on how the courts might interpret those terms,” said Newman. “That might render the whole bill merely symbolic at one end, or it might lead to it having very significant effects, or anything in between.”
On top of this, Newman claims the bill isn’t totally clear whether UNDRIP comes into effect immediately or over the course of several years, and there are inconsistencies between the English and French versions.
In the second group of criticisms, about the unpredictable consequences of recognizing these Indigenous rights, Newman mentions that some of the provisions of UNDRIP are interpreted differently throughout the world, so we don’t know the precise content of the rights each provision will confer. For example, there are three differing interpretations of the meaning of UNDRIP’s articles relating to “free prior and informed consent,” and it is unclear which interpretation would find its way into Canadian law.
In the same vein, he argues that UNDRIP touches on many areas of policy including religion, health, natural resources, defense, employment, and education, and potential effects should be studied thoroughly in their respective committees before passing the law.
After Newman’s presentation, Romeo Saganash had a chance to respond. He reminded the committee that when Canada enacted its new Constitution in 1982, it included Section 35(1), which states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This is an extraordinarily short and vague provision for such an important matter. Over the years, Canadian courts have developed a complex legal framework to elaborate on the content of those rights and the processes for protecting them.
Bill C-262, Saganash claims, does not create new uncertainty. Rather, it helps clarify the meaning of Section 35(1), removing some of the uncertainty that is currently present. Even if Bill C-262 remains somewhat ambiguous, it is inarguably more specific than the mere seventeen words of Section 35(1).
Who’s right? In my view, both Newman and Saganash bring important and valid perspectives.
Newman is right to raise concerns about the specific wording of the bill. As he put it, “Canada’s Indigenous peoples deserve our best work in every respect, including legislative drafting, and it is unacceptable to have a lesser standard of legislative drafting in this context.” These concerns do not mean the bill should not be passed. Instead, it gives the Committee the opportunity to amend the bill to strengthen the protection of Indigenous rights.
However, on Newman’s second group of criticisms, I’d side with Saganash. We don’t need to know the full effects of the bill before committing to it. Reconciliation is an enormous project to be worked on through nation-to-nation collaboration and negotiation between Canada and Indigenous peoples.
Miles Richardson, former president of the Haida Nation, who also testified at the meeting, said it well: “Getting down into the legal weeds before we establish the relationship and our intentions in those relationships is a recipe for trouble. It’s a recipe for chasing our tail forever.”
Ultimately, it’s not my view nor Newman’s view that matters. To have any chance at reconciliation, we non-Indigenous Canadians must recognize the autonomy of Indigenous peoples and rid ourselves of colonial, paternalistic attitudes.
Delving into the “legal weeds” of legislation may be an interesting and useful practice, but it must never become a roadblock to listening to, following the advice, and honouring the wisdom of the affected Indigenous peoples.
By Nicholas Pope, MCC Ottawa Office advocacy research intern. Nicholas has a law degree from the University of Calgary.